In the Matter of Federal preemption of state and
PRB-1 local regulations pertaining to Amateur radio facilities.

MEMORANDUM OPINION AND ORDER

Adopted: September 16, 1985
;Released: September 19, 1985

By the Commission: Commissioner
Rivera not participating.

Background

1. On July 16, 1984,
the American Radio Relay League, Inc (ARRL) filed a Request for Issuance of
a Declaratory Ruling asking us to delineate the limitations
of local zoning and other local and state regulatory authority
over Federally-licensed radio facilities. Specifically,
the ARRL wanted an explicit statement that would preempt all local
ordinances which provably preclude or significantly inhibit effective
reliable amateur radio communications. The ARRL
acknowledges that local authorities can regulate amateur installations
to insure the safety and health of persons in the community,
but believes that those regulations cannot be so restrictive
that they preclude effective amateur communications. 2. Interested parties
were advised that they could file comments in the matter.\fn 1/ With
extension, comments were due on or before December 26, 1984,\fn 2/
with reply comments due on or before January 25, 1985 \fn 3/ Over
sixteen hundred comments were filed.

Local Ordinances

3. Conflicts between
amateur operators regarding radio antennas and local authorities regarding
restrictive ordinances are common. The amateur operator
is governed by the regulations contained in Part 97 of our rules.
Those rules do not limit the height of an amateur antenna but they
require, for aviation safety reasons, that certain FAA notification
and FCC approval procedures must be followed for antennas
which exceed 200 feet in height above ground level or antennas
which are to be erected near airports. Thus, under FCC
rules some antenna support structures require obstruction marking
and lighting. On the other hand, local municipalities or governing
bodies frequently enact regulations limiting antennas and
their support structures in height and location, e.g. to side
or rear yards, for health, safety or aesthetic considerations.
These limiting regulations can result in conflict because the effectiveness
of the communications that emanate from an amateur
radio station are directly dependent upon the location
and the height of the antenna. Amateur operators maintain
that they are precluded from operating in certain bands allocated
for their use if the height of their antennas is limited by a local
ordinance. 4. Examples of restrictive
local ordinances were submitted by several amateur operators in this proceeding.
Stanley J. Cichy, San Diego, California, noted that in
San Diego amateur radio antennas come under a structures ruling
which limits building heights to 30 feet. Thus, antennas
there are also limited to 30 feet. Alexander Vrenios, Mundelein,
Illinois wrote that an ordinance or the Village of Mundelein
provides that an antenna must be a distance from the property
line that is equal to one and one-half times its height.
In his case, he is limited to an antenna tower for his amateur station
just over 53 feet in height. 5. John C. Chapman,
an amateur living in Bloomington, Minnesota, commented that he was not
able to obtain a building permit to install an amateur radio antenna
exceeding 35 feet in height because the Bloomington city ordinance
restricted "structures" heights to 35 feet.
Mr. Chapman said that the ordinance, when written, undoubtedly
applied to buildings but was now being applied to antennas in the
absence of a specific ordinance regulating them. There
were two options open to him if he wanted to engage in amateur communications.
He could request a variance to the ordinance by way of
hearing before the City Council, or he could obtain affidavits
from his neighbors swearing that they had no objection to
the proposed antenna installation. He got the building
permit after obtaining the cooperation of his neighbors. His
concern, however, is that he had to get permission from several people
before he could effectively engage radio communications
for which he had a valid FCC amateur license. 6. In addition to
height restrictions, other limits are enacted by local jurisdictions--anti-climb
devices on towers or fences around them; minimum distances
from high voltage power lines; minimum distances of towers from
property lines; and regulations pertaining to the structural
soundness of the antenna installation. By and large, amateurs
do not find these safety precautions objectionable. What
they do object to are the sometimes prohibitive, non-refundable
application filing fees to obtain a permit to erect an antenna installation
and those provisions in ordinances which regulate
antennas for purely aesthetic reasons. The amateurs
contend, almost universally, that "beauty is in the eye of the beholder."
They assert that an antenna installation is not more aesthetically
displeasing than other objects that people keep on their
property, e.g. motor homes, trailers, pick-up trucks, solar
collectors and gardening equipment.

Restrictive Covenants

7. Amateur operators
also oppose restrictions on their amateur operations which are contained
in the deeds for their homes or in their apartment leases.
Since these restrictive covenants are contractual agreements
between private parties, they are not generally a matter of concern
to the Commission. However, since some amateurs who commented
in this proceeding provided us with examples of restrictive
covenants, they are included for information Mr. Eugene O.
Thomas of Hollister, California included in his comments an
extract of the Declaration of Covenants and Restrictions for Ridgemark
Estates, County of San Benito, State of California.
It provides:

No antenna for transmission
or reception of radio signals shall be erected outdoors
for use by any dwelling unit except upon approval of the
Directors. No radio or television signals or any other
form of electromagnetic radiation shall be permitted to originate
from any lot which may unreasonably interfere with the
reception of television or radio signals upon any other lot.

Marshall Wilson, Jr. provided a copy of
the restrictive covenant contained in deeds for the Bell Martin
Addition #2, Irving, Texas. It is binding upon all of
the owners or purchasers of the lots in the said addition, his or their
heirs, executors, administrators or assigns. It reads:

No antenna or tower
shall be erected upon any lot for the purposes of radio
operations.

William J. Hamilton resides in an apartment
building in Gladstone, Missouri. He cites a
clause in his lease prohibiting the erection of an antenna. He
states that he has been forced to give up operation amateur radio equipment
except a hand-held 2 meter (144-148 MHz) radio transceiver.
He maintains that he should not be penalized just because
he lives in an apartment. Other restrictive
covenants are less global in scope than those cited above. For example,
Robert Webb purchased a home in Houston, Texas. His deed restriction
prohibited "transmitting or receiving antennas extending above the
roof line." 8. Amateur operators
generally oppose restrictive covenants for several reasons. They maintain
that such restrictions limit the places that they can reside if they
want to pursue their hobby of amateur radio. Some state
that they impinge on First Amendment rights of speech. Others
believe that a constitutional right is being abridged because, in their
view, everyone has a right to access the airwaves regardless
of where they live. 9. The contrary belief
held by housing subdivision communities and condominium or homeowner's
associations is that amateur radio installations constitute
safety hazards, cause interference to other electronic equipment
which may be operated in the home (television, radio, stereos)
or are eyesores that detract from the aesthetic and tasteful
appearance of the housing development or apartment complex.
To counteract these negative consequences, the subdivisions and associations
include in their deeds, leases or by-laws, restrictions
and limitations on the location and height of antennas or, in
some cases, prohibit them altogether. The restrictive covenants
are contained in the contractual agreement entered into at
the time of the sale or lease of the property. Purchasers
or lessees are free to choose whether they wish to reside where such
restrictions on amateur antennas are in effect or settle elsewhere.

Supporting Comments

10. The Department
of Defense (DOD) supported the ARRL and emphasized in its comments that continued
success of existing national security and emergency preparedness
telecommunications plans involving amateur stations would
be severely diminished if state and local ordinances were allowed
to prohibit the construction and usage of effective amateur
transmission facilities. DOD utilizes volunteers
in the Military Affiliate Radio Service (MARS), \fn 4/ Civil Air
Patrol (CAP) and the Radio Amateur Civil Emergency Service (RACES).
It points out that these volunteer communicators are operating
radio equipment installed in their homes and that undue
restrictions on antennas by local authorities adversely affect
their efforts. DOD states that the responsiveness of these volunteer
systems would be impaired if local ordinances interfere
with the effectiveness of these important national telecommunication
resources. DOD favors the issuance of a ruling that would set
limits for local and state regulatory bodies when they are
dealing with amateur stations. 11. Various chapters
of the American Red Cross also came forward to support the ARRL's request
for a preemptive ruling. The Red Cross works closely with amateur
radio volunteers. It believes that without amateurs' dedicated
support, disaster relief operations would significantly
suffer and that its ability to serve disaster victims would be hampered.
It feels that antenna height limitations that might
be imposed by local bodies will negatively affect the service now
rendered by the volunteers. 12. Cities and counties
from various parts of the United States filed comments in support of the
ARRL's request for a Federal preemption ruling. The
comments from the Director of Civil Defense, Port Arthur, Texas are
representative:

The Amateur Radio Service
plays a vital role with our Civil Defense program here
in Port Arthur and the design of these antennas and towers
lends greatly to our ability to communicate during
times of disaster. We do not believe there should be any
restrictions on the antennas and towers except for reasonable
safety precautions. Tropical storms, hurricanes and tornadoes
are a way of life here on the Texas Gulf Coast and good
communications are absolutely essential when preparing for
a hurricane and even more so during recovery operations
after the hurricane has past.

13. The Quarter Century
Wireless Association took a strong stand in favor of the Issuance of a declaratory
ruling. It believes that Federal preemption is necessary
so that there will be uniformity for all Amateur Radio installations
on private property throughout the United States. 14. In its comments,
the ARRL argued that the Commission has the jurisdiction to preempt certain local
land use regulations which frustrate or prohibit amateur radio
communications. It said that the appropriate standard in
preemption cases is not the extent of state and local interest in
a given regulation, but rather the impact of the regulation on
Federal goals. Its position is that Federal preemption is
warranted whenever local government regulations relate adversely
to the operational aspects of amateur communication.
The ARRL maintains that localities routinely employ a variety
of land use devices to preclude the installation of effective
amateur antennas, including height restrictions, conditional
use permits, building setbacks and dimensional limitations
on antennas. It sees a declaratory ruling of Federal preemption
as necessary to cause municipalities to accommodate amateur
operator needs in land use planning efforts. 15. James C. O'Connell,
an attorney who has represented several amateurs before local zoning
authorities, said that requiring amateurs to seek variances
or special use approval to erect reasonable antennas unduly restricts
the operation of amateur stations. He suggested
that the Commission preempt zoning ordinances which impose antenna
height limits of less than 65 feet. He said that this height
would represent a reasonable accommodation of the communication needs
of most amateurs and the legitimate concerns of local zoning authorities.

Opposing Comments

16. The City of La
Mesa, California has a zoning regulation which controls amateur antennas.
Its comments reflected an attempt to reach a balanced view.

This regulation has neither the intent,
nor the effect, of precluding or inhibiting effective and
reliable communications. Such antennas may be built as long as
their construction does not unreasonably block views or constitute
eyesores. The reasonable assumption is that there are always alternatives
at a given site for different placement, and/or methods
for aesthetic treatment. Thus, both public objectives of controlling
land use for the public health, safety, and convenience,
and providing an effective communications network, can
be satisfied. A blanket to completely set aside local control, or
a ruling which recognizes control only for the purpose of safety
of antenna construction, would be contrary to...legitimate local
control.

17. Comments from the
County of San Diego state:

While we are aware of the benefits provided
by amateur operators, we oppose the issuance of a preemption
ruling which would elevate `antenna effectiveness' to a position
above all other considerations. We must, however,
argue that the local government must have the ability to place
reasonable limitations upon the placement and configuration
of amateur radio transmitting and receiving antennas.
Such ability is necessary to assure that the local decision-makers
have the authority to protect the public health, safety and
welfare of all citizens. In conclusion, I would
like to emphasize an important difference between your regulatory powers
and that of local governments. Your Commission's
approval of the preemptive requests would establish a "national
policy." However, any regulation adopted by a local jurisdiction
could be overturned by your Commission or a court if such regulation
was determined to be unreasonable.

18. The City of Anderson,
Indiana, summarized some of the problems that face local communities:

I am sympathetic to the concerns of these
antenna owners and I understand that to gain the maximum reception
from their devices, optimal location is necessary.
However, the preservation of residential zoning districts as "liveable"
neighborhoods is jeopardized by placing these antennas
in front yards of homes. Major problems of public safety have
been encountered, particularly vision blockage for auto
and pedestrian access. In addition, all communities are faced with
various building lot sizes. Many building lots are so
small that established setback requirements (in order to preserve adequate
air and light) are vulnerable to the unregulated placement
of antennas. ...the exercise of
preemptive authority by the FCC in granting this request would not be in
the best interest of the general public.

19. The National Association
of Counties (NACO), the American Planning Association (APA) and the National
League of Cities (NCL) all opposed the issuance of an
antenna preemption ruling. NACO emphasized that federal and state
power must be viewed in harmony and warns that Federal intrusion
into local concerns of health, safety and welfare could weaken
the traditional police power exercised by the state and unduly
interfere with the legitimate activities of the states.
NLC believed that both Federal and local interests can be accommodated
without preempting local authority to regulate
the installation of amateur radio antennas. The APA
said that the FCC should continue to leave the issue of regulating
amateur antennas with the local government and with the state
and Federal courts.

Discussion

20. When considering
preemption, we must begin with two constitutional provisions. The
tenth amendment provides that any powers which the constitution either
does not delegate to the United States or does not prohibit the
states from exercising are reserved to the states. These are
the police powers of the states. The Supremacy Clause, however,
provides that the constitution and the laws of the United
States shall supersede any state law to the contrary.
Article III, Section 2. Given these basic premises, state laws may
be preempted in three ways: First, Congress may expressly preempt
the state law. See Jones v. Rath Packing Co., 430 U.S. 519, 525
(1977). Or, Congress may indicate its intent to completely occupy
a given field so that any state law encompassed within that
field would implicitly be preempted. Such intent to preempt
could be found in a congressional regulatory scheme that
was so pervasive that it would be reasonable to assume that Congress
did not intend to permit the states to supplement it.
See Fidelity Federal Savings & Loan Ass'n v. de la Cuesta, 458
U.S. 141, 153 (1982). Finally, preemption may be warranted when state
law conflicts with federal law. Such conflicts may occur when
"compliance with both Federal and state regulations is a physical impossibility,"
Florida Lime & Avocado Growers, Inc. v. Paul,
373 U.S. 132, 142, 143 (1963), or when state law "stands as an obstacle
to the accomplishment and execution of the full purposes and
objectives of Congress," Hines v. Davidowitz, 312 U.S. 52, 67
(1941). Furthermore, federal regulations have the same preemptive
effect as federal statues, Fidelity Federal Savings &
Loan Association v. de la Cuesta, supra. 21. The situation
before us requires us to determine the extent to which state and local zoning
regulations may conflict with federal policies concerning amateur
radio operators. 22. Few matters coming
before us present such a clear dichotomy of view point as does the instant
issue. The cities, countries, local communities and housing
associations see an obligation to all of their citizens and
try to address their concerns. This is accomplished
through regulations, ordinances or covenants oriented toward the health,
safety and general welfare of those they regulate.
At the opposite pole are the individual amateur operators and their
support groups who are troubled by local regulations which may
inhibit the use of amateur stations or, in some instances,
totally preclude amateur communications. Aligned with the
operators are such entities as the Department of Defense, the American
Red Cross and local civil defense and emergency organizations who
have found in Amateur Radio a pool of skilled radio operators
and a readily available backup network. In this situation,
we believe it is appropriate to strike a balance between the federal
interest in promoting amateur operations and the legitimate
interests of local governments in regulating local zoning
matters. The cornerstone on which we will predicate our decision
is that a reasonable accommodation may be made between the
two sides. 23. Preemption is
primarily a function of the extent of the conflict between federal and state and
local regulation. Thus, in considering whether our regulations
or policies can tolerate a state regulation, we may consider such
factors as the severity of the conflict and the reasons underlying
the state's regulations. In this regard, we have previously recognized
the legitimate and important state interests reflected in
local zoning regulations. For example, in Earth Satellite Communications,
Inc., 95 FCC 2d 1223 (1983), we recognized that

...countervailing state
interests inhere in the present situation...For example, we do not wish
to preclude a state or locality from exercising jurisdiction
over certain elements of an SMATV operation that properly may fall
within its authority, such as zoning or public safety and health,
provided the regulation in question is not undertaken as a pretext
for the actual purpose of frustrating achievement of the preeminent
federal objective and so long as the non-federal regulation
is applied in a nondiscriminatory manner.

24. Similarly, we recognize
here that there are certain general state and local interests which
may, in their even-handed application, legitimately affect amateur
radio facilities. Nonetheless, there is also a strong federal
interest in promoting amateur communications. Evidence
of this interest may be found in the comprehensive set of rules that
the Commission has adopted to regulate the amateur service. \fn
5/ Those rules set forth procedures for the licensing of stations
and operators, frequency allocations, technical standards which
amateur radio equipment must meet and operating practices which
amateur operators must follow. We recognize the amateur
radio service as a voluntary, noncommercial communication service,
particularly with respect to providing emergency communications.
Moreover, the amateur radio service provides a reservoir of trained
operators, technicians and electronic experts who can be called
on in times of national or local emergencies. By its nature,
the Amateur Radio Service also provides the opportunity for individual
operators to further international goodwill. Upon weighing
these interests, we believe a limited preemption policy is
warranted. State and local regulations that operate to preclude
amateur communications in their communities are in direct conflict
with federal objectives and must be preempted. 25. Because amateur
station communications are only as effective as the antennas employed, antenna
height restrictions directly affect the effectiveness of
amateur communications. Some amateur antenna configurations require
more substantial installations than others if they are
to provide the amateur operator with the communications that
he/she desires to engage in. For example, an antenna array
for international amateur communications will differ from an antenna
used to contact other amateur operators at shorter distances.
We will not, however, specify any particular height limitation
below which a local government may not regulate, nor will
we suggest the precise language that must be contained in local
ordinances, such as mechanisms for special exceptions, variances,
or conditional use permits. Nevertheless, local regulations
which involve placement, screening, or height of antennas
based on health, safety, or aesthetic considerations must
be crafted to accommodate reasonably amateur communications,
and to represent the minimum practicable regulation to
accomplish the local authority's legitimate purpose. \fn 6/ 26. Obviously, we
do not have the staff or financial resources to review all state and local
laws that affect amateur operations. We are confident, however,
that state and local governments will endeavor to legislate
in a manner that affords appropriate recognition to the important
federal interest at stake here and thereby avoid unnecessary
conflicts with federal policy, as well as time-consuming and
expensive litigation in this area. Amateur operators who
believe that local or state governments have been overreaching and
thereby have precluded accomplishment of their legitimate communications
goals, may, in addition, use this document to bring
our policies to the attention of local tribunals and forums. 27. Accordingly, the
Request for Declaratory Ruling filed July 16, 1984, by the American Radio
Relay League, Inc., IS GRANTED to the extent indicated herein
and in all other respects, IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION
William J. Tricarico
Secretary